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Wednesday April 1, 2020

Ontario Decisions on Parenting Time During COVID-19

Posted in: COVID-19 Family Law

Yesterday, Dr. Strang recommended that children should not be moving back and forth between two homes. However, Courts in Ontario have indicated otherwise. You should seek legal counsel prior to altering any current parenting order or agreement.

Ontario courts have already started hearing emergency access cases relating to COVID-19. Similar to Ontario, Nova Scotia is only hearing family law matters if it is an emergency. Whether or not your situation is an “emergency” is fact specific.

Below are some frequently asked questions related to COVID-19 and parenting time with reference to some recent Ontario judgments.

Can I request that my child move to another country due to COVID-19?

It depends. In one Ontario case (Smith v. Sieger, 2020 ONSC 1681), the court ordered the parties’ 16-year old son, Adam, be returned from his school in Utah to Ontario. The Court determined this motion was urgent based on Prime Minister Trudeau and President Trump’s recent announcement of the imminent closure of the US-Canada border.

The Ontario court ordered Adam to be returned to Ontario based on his best interests. The court granted the motion given the current health concerns, the imminent closure of the boarder and the recommendations of health professionals and Government authorities concerning Canadian citizens outside of the country. Adam was required to quarantine for a minimum of 14 days in his father’s care upon return.

However, in another case (Onuoha v. Onuoha, 2020 ONSC 1815), the father wanted his children returned to Nigeria, as his children were currently living in Ontario with their mother. The judge ruled this was not an urgent matter and this was not the time to hear a motion to return children to another jurisdiction. The judge looked at it practicality –even if the father was successful, he would unlikely be allowed to travel with them for weeks or even months. Justice Madsen also stated, “it would be foolhardy to expose the children to international travel in the face of the Travel Advisory.”1

If the children are staying with the other parent during this time, is this creating a “Status Quo” that will later be used against me?

This was an issue in Onuoha v. Onuoha, 2020 ONSC 1815. The father argued that if the children stayed with the mother during this pandemic, this could create an unfavourable status quo that could later be used against him in later proceedings. The court rejected this and recognized the many steps the father had taken in an effort to see his children. The court held the lack of parenting time with his children was through no fault of the father and this was not a status quo stemming from the father’s lack of involvement. The court further held that the mother should make every reasonable effort to ensure communications between their children and their father, whether through FaceTime, Skype, telephone or otherwise.

What happens if my ex-partner disregards government policies on COVID-19?

Earlier this month, the Ontario court in Jackman v. Doyle, 2020 ONSC 1875 held that a parent changing the status quo and completely disregarding government policies on COVID-19 will be ordered to return the children to the other parent.

In Jackman v. Doyle, 2020 ONSC 1875, the children primarily lived with their mother and the father had access to the children as agreed between the parties in the presence of their nanny. The father returned to Ontario from a trip to Brazil on March 13, 2020 and told the mother he was taking the children the week of March 15, 2020 for their second week of March break. The mother did not agree to this arrangement. During the children’s time with their father, the children experienced a fever and the father nonetheless took them to public places. The father also took the children to visit his elderly mother.

The court held that “in light of the current COVID-19 situation, the applicant is understandably extremely concerned for the children’s well-being, and argues that the respondent’s entire decision-making has been called into serious question.” The court ordered the children be returned to their mother as it was in the children’s best interests to maintain the status quo. Specifically, the children’s status quo was unilaterally altered by the father’s actions.

However, simply expressing concerns that your ex-partner is not social distancing is likely not enough to prevent your child from seeing their parent.

In Ribeiro v. Wright, 2020 ONSC 1829 (“Ribeiro”), the court held that courts will deal with COVID-19 parenting issues on a case-by-case basis, specifically:

“If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.”2

In Ribeiro, the court held that although the mother’s concerns about COVID-19 were well-founded, it was “not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.”3 The court did not authorize the matter as urgent.

The court in Ribeiro held that the presumption is that the existing parenting arrangement should continue.4 Specifically, the court held, “There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.”5 The court went on to say the following:

The court in Ribeiro highlighted the following principles on when parenting arrangements should be subject to change:

  1. In some cases, a parent may have to forego their parenting times with their child due to some personal reason (for example, if they are self-isolating for a 14-day period due to travel or exposure to illness).8
  2. In some cases, a parent’s personal risk factors (such as their employment) may require controls relating to direct contact with a child.9
  3. In some cases, a parent’s lifestyle or behaviour during COVID-19 (such as failing to comply with social distancing) may be sufficient to consider direct parent-child contact.10

The court in Ribeiro also stated that flexibility between co-parents is paramount during these uncertain times.

*These cases are from Ontario. Therefore, they are not binding on Nova Scotian courts, but are likely persuasive; meaning these same logic and principles will likely apply in Nova Scotia.

If your co-parent is disregarding government policies on COVID-19, or to discuss your unique parenting arrangement amidst COVID-19, talk to a member of our Family Law team. Request your free 30-minute consultation via phone or virtual meeting platform (Skype, Zoom, FaceTime, etc.).   

This is legal information and is not intended to be legal advice.

1 Onuoha v Onuoha, 2020 ONSC 1815 at para 10.

2 Ribeiro v Wright, 2020 ONSC 1829 at para 20-21.

3 Ribeiro v Wright, 2020 ONSC 1829 at para 26.

4 Ribeiro v Wright, 2020 ONSC 1829 at para 11.

5 Ribeiro v Wright, 2020 ONSC 1829 at para 7.

6 Ribeiro v Wright, 2020 ONSC 1829 at para 10.

7 Ribeiro v Wright, 2020 ONSC 1829 at para 11.

8 Ribeiro v Wright, 2020 ONSC 1829 at para 12.

9  Ribeiro v Wright, 2020 ONSC 1829 at para 13.

10 Ribeiro v Wright, 2020 ONSC 1829 at para 14.

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